HKSAR v. LAU CHI CHUNG

HCMA295/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 295 OF 2002

(on appeal from ESCC No. 3923 of 2001)

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J U D G M E N T

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1. The appellant was convicted on 11 March 2002 on his own plea of two charges of trafficking in a dangerous drug. The particulars of the first charge were that the appellant had, on 13 October 2001 at the L.A. Disco in Morrison Hill Road, Wanchai, unlawfully trafficked in a dangerous drug, namely, 0.73 grammes of a powder containing 0.04 grammes of ketamine. The particulars of the second charge alleged that the appellant had, on 20 October 2001 in the same discotheque, unlawfully trafficked in 1.17 grammes of a powder containing 0.74 grammes of ketamine.

2. The appellant admitted a summary of facts and those facts were that in the early hours of 6 October 2001, a female undercover police officer was in L.A. Disco in Wanchai when she was approached by the appellant who offered her ketamine. At that point, the appellant and the undercover police officer were unknown to each other. The appellant gave to the police officer his contact number and told her if she wanted to buy ketamine in the future she should call him.

3. On 13 October 2001, the police woman called the appellant from the L.A. Disco at 12:49 a.m. inquiring if he was there. He replied that he was on his way. The appellant later arrived at 3:30 a.m. He told the undercover police officer that he had "K jai" and asked if she wanted any. He told the officer that it was $100 per packet. The officer then asked for three packets and handed over $300 and was given three packets in exchange. The appellant then left.

4. On 20 October 2001, the undercover officer again went to the same discotheque. At 3:00 a.m., the appellant approached her and asked her if she wanted "K jai" again. She agreed to buy five packets at a cost of $400 and, at 5:05 a.m., the appellant handed over the five packets. The undercover officer then left the discotheque.

5. The appellant was arrested on 13 November 2001 and, under caution at the scene, he said :

"I see, I am not a trafficker, give me a chance."

Later, he admitted the offences under caution but said he committed them because he wished to court the undercover officer. He also in the statement said that he bought the drugs from a person named "Ah Lung" of whom he gave full details to the police and that he sold or offered the drugs to the undercover police officer at the same price for which he purchased them and that he did not make a profit from selling the drugs.

6. The magistrate, having convicted the appellant, sentenced him after giving a discount for his late plea of guilty to a period of four months' imprisonment in respect of each of the two charges, with two months of the second charge to run consecutively to the sentence on the first charge, making a total sentence of six months' imprisonment. The appellant appeals the sentences.

7. The initial grounds of appeal were that the total sentence of six months' imprisonment was manifestly excessive and/or wrong in principle for varying reasons and that the magistrate did not properly consider the mitigating and surrounding circumstances of the appropriateness of a non-custodial sentence and wrongly imposed an immediate custodial sentence of six months.

8. During the course of the argument on this matter, Mr Grounds for the appellant conceded that the sentence was not wrong in principle, however, continued to argue that it was manifestly excessive. Mr Grounds refers me to the case of HKSAR v. Lee Tak Kwan [1998] 2 HKLRD 46 where the Court of Appeal considered the appropriate tariff of sentencing for the drug ecstasy. There, Mortimer VP said :

" The aim must be to achieve a scale of sentencing for trafficking which will deter those who seek to profit out of the abuse of the drug which has no lawful medical use. Those who must principally be deterred are those who import or manufacture the drug or who indulge in its syndicated supply."

Mr Grounds argues, and I accept, that this applies equally to drug ketamine as to ecstasy.

9. Mortimer VP went on to say :

" At the lower levels, it will be necessary for the sentencer to make a careful assessment of the real criminality involved. For trafficking in very small quantities, immediate custodial sentences for first offenders may not always be necessary."

10. The court in that case held that in respect of up to 25 grammes of the drug ecstasy, sentencing was entirely within the discretion of the sentencer. The court must have contemplated that a quantity of 25 grammes would invite a sentence of nearly two years' imprisonment as the next band of sentencing in respect of 25 to 400 grammes of the drug, the tariff was two to four years.

11. Mr Grounds also referred me to the case of HKSAR v. Chu Ching Tak, HCCC 164/2001, a ruling by Bokhary J, in respect of which she heard evidence of the nature of ketamine as a drug of abuse, it having been by legislation changed from a "Part I Poison" to a "Dangerous Drug". Having reviewed that evidence and all the arguments upon it, Bokhary J said :

" Until more data on ketamine becomes available or some new sentencing guidelines are laid down by the Court of Appeal, I take the view that sentencing for ketamine trafficking should proceed on the basis of the sentencing guidelines laid down by the Court of Appeal in HKSAR v Lee Tak Kwan for ecstasy trafficking. ...."

12. Mr Grounds therefore arrives at the proposition that ketamine should be sentenced upon the same basis as ecstasy. For the small quantities involved with this appellant, sentencing is at the discretion of the sentencing judge with the top end of the scale being two years and that immediate custodial sentences for first offenders may not always be necessary.

13. Having established that, Mr Grounds argues that the appellant was aged 28 years, had an excellent work record, was of clear record having no criminal convictions, had entered a plea of guilty and showed remorse, was not a drug addict and was prior to this case a responsible young man who saved his earnings and supported his parents; that the magistrate did not reject the mitigation advanced as to the appellant's amorous motive which must be deemed to have been accepted; that it was within the power of the police to have arrested the appellant after the first offence thus preventing the commission of the second; he was unlikely to offend by virtue of his age, clear record, work record and arrest, and that a community service order was a viable sentencing option in this instance. He urges me to consider HKSAR v. Chow Chak Man & Another [1999] 3 HKLRD 37, in which the Hong Kong Court of Appeal followed the English Court of Appeal's decision in R. v. Brown (1981) 3 Cr. App. R (S) 294 where it was considered offenders best suited to a community service order shall :

(1) be either a first offender, or one with a light criminal record;

(2) come from a stable home background, perhaps with a family;

(3) have a good work record -- orders are not designed to encourage the lazy, or to show the idle, the errors of their ways;

(4) be in employment, or have a realistic prospect of such;

(5) have shown genuine remorse; or

(6) present no more than a slight risk of re-offending.

14. He further goes on to quote Jackson J in HKSAR v. Lam Kin Hung, HCMA 11/2002 where the judge said :

" It seems to me to be beyond question that a community service order can effectively serve the dual purpose of punishment and rehabilitation. It is also effective not least because if an offender fails to observe the strict requirements imposed upon him by those directing his labours he is liable at any time during the term of the order to be 'resentenced' for the offence. That, or so it seems to me, is a powerful incentive for the offender to comply fully with the order and an equally powerful disincentive to offend again."

15. Mr Grounds argues that I must look at not only the circumstances of the offence but the circumstances of the offender, and that a properly considered sentence balances both of those factors to arrive at a sentence which not only properly reflects the society's disapproval of the type of offence which is being sentenced but the needs, requirements and circumstances of the offender are properly taken into account. He says this was not the case in the sentence in this matter.

16. The first things to consider are the circumstances of the offences. The first approach made by the appellant to the undercover police officer was not the subject of a charge nor did the magistrate take it into account in assessing the sentence to be past upon the appellant, it does, however, give background to the commission of the offence and place in context the actions of the appellant. The first approach between the appellant and the police officer was made by the appellant. He approached the woman police officer and asked if she had tried something, and showed her a paper packet saying it contained "K" (which was a reference to ketamine) and offered it to her to try. The appellant put forward before the magistrate and in his statement under caution that this was an approach he made to the woman police officer because he had an amorous intent.

17. These facts demonstrated that at the time he approached the police officer, he was in possession of a drug he alleged to be ketamine and that he offered it to the officer. It was not a matter of she either approaching him or in the course of conversation he indicating that he would be able to procure the drug for her. At the time of the approach, he clearly had a substance in his possession which he represented to be ketamine, a representation that has considerable force given his ability on subsequent occasions to sell the drug to the officer. On that occasion, he gave his telephone number to the officer saying if she wanted to buy in the future she should call him. It seems to me inconsistent with the allegation that he had an amorous intent that he should give her his telephone number with that suggestion. It would be far more likely, I suggest, as a matter of common sense, if he took her phone number with a view to calling her to pursue his interest.

18. Subsequently, on 13 October 2001, the officer entered the discotheque and, at 0:49 hours, called the appellant asking if he was there. He said he was on the way, and upon arrival at 3:30 a.m., he said to the officer : "I have K jai, do you want some?" The officer, at that point having enquired the price, purchased three packets which were handed to her in exchange for $300. Again, it would appear to be inconsistent with the claim that his intent was amorous in that he was then in possession of packets of the drug and able instantly to satisfy the request for the purchase of three packets.

19. There is no suggestion in the agreed facts that having been asked for the drugs he acquired them from somewhere else and later delivered them to the undercover police officer, which was what occurred at the third meeting between the appellant and the undercover police officer on 20 October 2001, when the appellant approached the undercover police officer at 3:00 a.m., asked if she wanted ketamine again, she agreed to purchase five packets at a cost of $400, and those packets were handed to her by the appellant at 5:05 in the morning of the same day.

20. The magistrate said in his Brief Facts :

".... On the agreed Brief Facts he met with the officer on three separate occasions and there was at no time any evidence of any innocent social intent, although he stated this in a cautioned statement; I rejected that mitigation as a transparently concocted, after the fact explanation of his acts. ...."

The magistrate had ample reasons on the Brief Facts to come to that conclusion. That view being reinforced by the fact that whilst the appellant gave his telephone number to the undercover police officer so that she could contact him, he does not seem on the brief facts to have sought her telephone number which one would expect to be the case if he had an amorous intent.

21. The appellant claimed to have made no profit on the transaction and Mr Grounds points to this as reducing the seriousness of the offence. I am referred to the case of HKSAR v. Wong Suet Hau & Another [2002] 1 HKLRD 69 where Stuart-Moore VP said :

" It has often been said that sentencing is an art. Judges are expected to use their experience, assisted by a large measure of common sense, to decide whether a distinction can properly be drawn between a trafficker who can genuinely advance mitigation that no profit motive was involved in the small supply of drugs to a friend, and others who carry a supply to give to their friends as and when the occasion may arise. In the former category, there might, for example, be the individual who purchases a small quantity of a dangerous drug for recreational use and gives part of it to his partner, who has previous experience of the drug, to consume at a social event. This plainly would fit, we suggest, into the lowest bracket of sentence for trafficking. It is quite a different matter, taking the example in the latter category, for a trafficker, who sometimes uses drugs, to carry or store a supply of drugs to give to his friends or acquaintances as and when the occasion should arise. Firstly, it goes without saying that such traffickers pose exactly the same threat to society as people who peddle drugs for gain. Either way, the drug abuser is supplied with drugs, with the same, potentially dangerous impact, resulting from the supply. Secondly, the bulk of the drugs would, in such an example, almost certainly have been established to be intended for trafficking and, whilst the absence of a profit motive, inherently unlikely though this must be in such a scenario, might slightly reduce the trafficker's moral blameworthiness, we do not consider that this would provide mitigation justifying any specific discount."

In the matter before me, the appellant on his own admission acquired the drugs by purchase to resell them to the undercover police officer. Even if he did not make a profit he must fall within the second category referred to by Stuart-Moore VP, who went on to say later in the judgment :

" It has to be borne in mind that the evil behind all aspects of trafficking in drugs, which the courts have a duty to deter, is ultimately the supply of dangerous drugs to the public, whether or not this is done for financial gain. Looked at in another way, we believe that the major concern of the law-abiding community in Hong Kong, aware of the immense harm and suffering caused by drugs and by those who are engaged in trafficking them, is principally directed at the availability of drugs which traffickers make possible by their activities rather than the profits which traffickers are able to make from what they have done. By way of example, the parents whose son or daughter starts to abuse drugs, are unlikely to have any particular interest in the trafficker's motive for supplying those drugs; it is the fact that their offspring has been supplied with the drugs which will, justifiably, be the object of their concern and it will be no consolation to such parents to be told that the supply came from a 'friend' who had no financial motive when handing over the drugs."

In my view, the magistrate very properly disregarded the mitigation that the supply of drugs was for an amorous intent and that the supply was without a profit being made by the appellant.

22. In his Reasons, the magistrate said this :

" I considered all that was submitted in mitigation including his clear record. The mitigation is included on file and I will not repeat it here other than to state that he has a stable background, a decent job and work record. ...."

The magistrate had fully in mind the background and circumstances of the appellant and properly disregarded those matters that I have referred to above. Taking into account all that was before him, it cannot be said that he omitted to consider any factor which was before him.

23. The appellant argues that the magistrate ought to have considered a community service order and, to assist in my deliberations and without holding out any hope that such an order would be imposed, I obtain a report in respect of the appellant. The report that I received confirms his background and finds him suitable for community service order. The magistrate had declined to obtain such a report on the basis that his view of the circumstances of the appellant together with the nature and seriousness of the offence made a community service order inappropriate. With that I must agree. The offence upon analysis is found to be a simple sale and purchase of drugs in a venue where such offences are proliferating among a group of persons whose consumption of such drugs as a class of society is growing. The magistrate was right to dismiss the alternative of community service order bearing in mind all those factors.

24. I find that the sentence was neither manifestly excessive nor wrong in principle, and this appeal against sentence must fail and is dismissed.